Stay on death penalty lifted

http://www.sptimes.com:80/2007/09/11/State/Stay_on_death_penalty.shtml

A judge who held up a case says concerns he had about lethal injection are resolved.

By ALEX LEARY and MEG LAUGHLIN, Times Staff Writers
Published September 11, 2007

Executions in Florida may be clear to resume after an Ocala judge lifted his stay on one lethal injection case Monday, declaring he is satisfied with state procedures he doubted in July.

However, it is unlikely any executions will take place until the state Supreme Court considers the issue.

In his new ruling, Circuit Judge Carven Angel concludes that the execution of a death row inmate that took so long it triggered a review of Department of Corrections procedures was not "botched."

Angel said the inmate died "within a reasonably short time ... in a manner that the court finds was painless and humane."

"It was never intended that the inmate should wake up and go home," Angel wrote in a decision that reversed his July critique from the bench on concerns over the execution of Angel Diaz.

In that earlier order, Judge Angel expressed concerns about the way the execution procedure is staffed, from the qualifications of the executioner to the job descriptions for the lethal injection team.

Reached by telephone at his Ocala home Monday night, Angel explained why his opinion had changed: "The Department of Corrections appeared to me to be sensitive to those concerns and addressed them."

In December, it took 34 minutes for Diaz to die, more than double the average time, because the lethal cocktail went into his soft tissue, not his bloodstream. Witnesses said it appeared Diaz grimaced and clenched in pain.

Shortly after, then-Gov. Jeb Bush suspended executions and asked for a review of lethal injection procedures in Florida. In July, Gov. Charlie Crist lifted the moratorium, but Angel stopped executions again, questioning whether the methods used were "consistent with evolving notions of the decency of man."

After 13 days of hearings, held between May and September, Angel ruled Monday that because Diaz hadn't "screamed or yelled after the injection ... the inmate did not suffer any pain" and his death did not "result in any abuse, or any cruel or unusual punishment prohibited by the Eighth Amendment."

Angel's stay was limited to condemned killer Ian Deco Lightbourne, but Angel was acting as a fact-finder for a larger case before the Florida Supreme Court. The high court chose Lightbourne -- the first name on the challenge that was filed by many inmates - to be the case it will use to weigh in on the use of lethal injection.

Lightbourne is now cleared to be executed, but no death warrant has been signed for him. It's unlikely any other execution will be scheduled before the Lightbourne case is resolved.

Still, the Angel ruling has broader implications for the state's death penalty, alleviating a stumbling block. Crist purposefully scheduled the execution of Brevard County pedophile and murderer Mark Dean Schwab in November to give the legal issues being tested in the Lightbourne case time to be resolved.

Erin Isaac, a spokeswoman for Crist, said she had not seen the order but said the governor has confidence in the Department of Corrections and is "confident we'll carry out this process in a humane and dignified way."

Neal Dupree, Lightbourne's attorney, said he was surprised that Judge Angel changed his ruling but didn't offer details on how the state had modified its procedures to satisfy him.

"It's almost like the judge never had all those concerns in July," Dupree said. "He seems to have accepted the state's theory that (Diaz) didn't leave the chamber alive, so the execution couldn't be botched."

Angel said Monday night that it's worth remembering that the state Supreme Court has yet to consider these issues. Oral arguments in the Lightbourne and Schwab cases are scheduled for Oct. 11.

"The concerns I expressed in the July order are real, legitimate concerns and can't be ignored," said Angel, 64. "The state and the department are going to have to be sensitive to them. Maybe the Florida Supreme Court will say something about it but ... I obviously don't feel I have the authority to change things the Florida Supreme Court changes."

Alex Leary can be reached ataleary@sptimes.com or (850) 224-7263. Meg Laughlin can be reached at mlaughlin@sptimes.com or (727) 893-8068.

[Last modified September 11, 2007, 00:03:21]